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Chemical Reactions

By Audrey Elsberry, posted Apr 5, 2024
(Illustration by Mark Weber)
Everybody drinks water, and all of the water is contaminated.

“All of the people here who have been drinking from the Cape Fear River for the past 40, 50 years have been contaminated,” said Dana Sargent, executive director of the Cape Fear River Watch. The contamination Sargent is referring to is per- and polyfluoroalkyl substances, known as PFAS.

The impact of PFAS on the environment and people exposed to it is still being studied. However, multiple public entities in the region have taken legal action against the companies they deem responsible for dumping the chemicals into the surrounding environment.

Companies responsible for PFAS contamination in the region’s water systems are DuPont and The Chemours Co., according to the Cape Fear Public Utility Authority (CFPUA), which has a lawsuit pending against the companies regarding alleged PFAS contamination.

The contamination of the Cape Fear River basin likely originated in the Fayetteville Works plant manufacturing Chemours and DuPont chemicals about 100 miles upriver from Wilmington, according to CFPUA officials. 

In January, New Hanover County filed a lawsuit against 27 PFAS manufacturers and distributors, including Chemours and DuPont claiming contamination through dumping and the use of fire-fighting foam containing the chemicals. The filing was the latest of a string of lawsuits aimed at recovering damages associated with so-called forever chemicals dumped in water systems.

CFPUA and Brunswick County filed lawsuits – that were later consolidated – in federal court against Chemours and DuPont in 2017 with an expected trial date later this year or early next year. CFPUA also filed a follow-up suit in March 2023 to prevent DuPont, Chemours and related companies from restructuring their financials and shielding themselves from liability for the damages, said Vaughn Hagerty, CFPUA’s public information officer. Chemours was also sued by officials in Cumberland County, where the Fayetteville Works plant is located, last year. 

Lawsuits were named as one source of financial loss in Chemours annual report for the 2023 fiscal year, filed March 27. The company reported a net loss of $238 million in the filing, with an 82% increase in its “selling, general and administrative” expenses. The rise in these expenses is attributed to “$764 million in litigation-related charges during the year ended December 31, 2023,” according to the annual report.

Chemours officials did not respond to the Business Journal’s requests for comment as of press time but denied the manufacturing of aqueous film-forming foams (AFFF) containing PFAS in its 2023 annual report. AFFFs are commonly used by firefighters and contain PFAS. New Hanover County’s lawsuit against manufacturers of the substance like Buckeye Fire Equipment Company and Tyco Fire Products LP, claims AFFFs previously used by New Hanover Fire Rescue caused “widespread PFAS contamination,” according to the legal documents.

Representatives of DuPont emailed a statement to the Business Journal.

“In 2019, DuPont de Nemours was established as a new multi-industrial specialty products company. DuPont de Nemours has never manufactured PFOA, PFOS or firefighting foam,” they said in an email regarding New Hanover County’s lawsuit. “While we don’t comment on pending litigation matters, we believe this complaint is without merit, and we look forward to vigorously defending our record of safety, health and environmental stewardship.” 

The latest suit from New Hanover County is still in the process of serving the defendants, informing them they are being sued, said New Hanover County attorney K. Jordan Smith. The suit is being handled by Baron & Budd, a Dallas firm. Baron & Budd was also involved in the county’s settlement with opioid distributors. (Read more about the opioid settlement and its impact on the city and county here.)

The county’s lawsuit differs from CFPUA’s because this suit includes damages caused by PFAS in foam used to extinguish fires by the New Hanover County Fire Rescue. Use of aqueous film-forming foam is a “common practice” among local fire departments, according to county officials. The New Hanover County Fire Rescue is no longer using foam containing PFAS.

Because the county’s filing included harm caused by the firefighting foam, the defendants moved the case from the Superior Court in New Hanover County to federal court, then transferred the lawsuit to the U.S. District Court, District of South Carolina. There, the lawsuit was folded into the Aqueous Film-Forming Foams Multidistrict Litigation (AFFF MDL), Baron & Budd officials told the Business Journal in an email.

“The AFFF MDL is a consolidated setting for lawsuits where harm caused by the use of AFFF, a type of firefighting foam, is alleged,” according to Baron & Budd. “The AFFF MDL has resulted in two landmark settlements to assist public water systems [in addressing] PFAS. The county is not a member to those settlements because it does not own or operate a public water system.”

The next step for the county’s suit is the discovery period for the prosecutors and defendants, said Smith, the county attorney. Smith is acting as the conduit between the Texas firm and the county commissioners. Any resolution to the lawsuit, such as a settlement, must be approved by the board of commissioners, Smith said.

Further through the litigation process, CFPUA’s lawsuit will begin expert discovery in July. The purpose of the suit is to recover funds from the $43 million installation of Granular Activated Carbon (GAC) filters in CFPUA’s Sweeney Water Treatment Plant in October 2022 to address PFAs in the area’s water. The Sweeny Water Treatment Plant services 80% of CFPUA’s customers and gets its water from the Cape Fear River, according to CFPUA’s website.

CFPUA was formed in 2007 after the Wilmington City Council and the New Hanover County Board of Commissioners adopted a resolution to create an organization that would combine their water and sewage utilities, according to City of Wilmington officials.

According to CFPUA’s 2023 legal filing, DuPont and Chemours are accused of dumping PFAS into the surrounding environment for over 30 years. DuPont publicly ceased manufacturing one type of PFAS but replaced the chemical with a similarly harmful material, dubbed GenX. Both DuPont and Chemours “released (GenX) into the environment without public notice,” according to the legal complaint.

Despite the media attention surrounding lawsuits aimed at PFAS and GenX manufacturers, many residents throughout the Cape Fear region don’t know about the dangers of ingesting the chemicals, Sargent said.

“There’s a lot of people who don’t know about it. There’s a lot of people for which English is their second language so they’re less likely to know about it,” she said. “There’s also a ton of people who are really engaged in working three jobs to pay the bills and aren’t paying attention to Cape Fear River Watch and our nonprofit news articles.”

Some people don’t know where their drinking water comes from, and those who drink from well water may think their drinking water is uncontaminated, but that is not true, Sargent said. Others cannot afford to only drink filtered water or bottled water.

It remains under-researched what harm GenX and PFAS chemicals can do to humans, she said. But the Cape Fear River Watch is part of a GenX health exposure study that found two to three times more PFAS in the blood of Cape Fear residents compared to the national average, Sargent said.

Local organizations are hoping to measure the impact of PFAS contamination on the environment and public health. The N.C. Collaboratory, a scientific research and policymaking organization, partnered with Thermo Fisher Scientific, to donate equipment to the University of North Carolina Wilmington’s Center for Marine Science. The donation announced March 27 is intended for research on the impact of PFAS.

The $3 million investment by the N.C. Collaboratory gave Thermo Fisher Scientific instruments to five universities across the state, according to the release. Each university selected to receive the instrument has a researcher on staff who is a member of the PFAS Testing Network. The Water Safety Act included in the state’s 2018 budget allowed the Collaboratory to create the N.C. PFAS Testing Network.

The process of righting the harm done to the region is far from over, said New Hanover County Commissioner Jonathan Barfield. The county is very early in the litigation process, Barfield said.

“We probably have got a couple of years ahead of us,” he said. “The best outcome would be a financial settlement, No. 1, but also solutions for … firefighters and making sure that we are adequately taking care of those folks that are exposed, whether it’s them or other residents in our community that have been affected by PFAS.”
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